Summary: The Council was at fault. It failed to provide all Mrs X’s child, Y’s, Education Health and Care (EHC) Plan provision, delayed putting a personal budget in place for Y’s provision and delayed responding to Mrs X’s complaints. The Council has already paid Mrs X £5,000 to acknowledge Y’s lost provision between September 2024 and April 2025 and her time and trouble. The Council will also apologise and pay Mrs X a symbolic payment to acknowledge her distress with Y’s personal budget up to July 2025 and avoidable time and trouble caused by the Council’s failings with complaint handling for Mrs X’s second complaint. The Council has already put in place service improvements.

The complaint

1. Mrs X complained the Council failed to secure the special educational provision set out in her child, Y’s, Education, Health and Care (EHC) Plan issued in September 2024. Mrs X also complained there was delay in considering and agreeing Y’s personal budget, and when it was agreed the amount was not sufficient to meet Y’s need. Mrs X also complained about poor Council complaint handling. Mrs X said Y missed provision to which they were entitled and their emotional wellbeing suffered. Mrs X said it caused her distress and avoidable time and trouble.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended).
3. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
4. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(1), as amended).
5. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I have and have not investigated

6. In relation to Y’s section F provision I have investigated between September 2024 when the Tribunal concluded and the Council subsequently issued Y’s final amended Education, Health and Care (EHC) Plan to April 2025 when the Council issued its stage two response. This investigation does not consider any issues with delivery of special educational provision to Y after April 2025. As explained in paragraph three of this decision the Council should have an opportunity to respond to any issues before we look at them. Mrs X should make a new complaint to the Council about anything that happened in relation to Y’s provision after April 2025.
7. Having investigated what happened between September 2024 and April 2025 I have also considered ongoing injustice caused by the Council’s failings when responding to Mrs X’s request for a personal budget for Y between August 2024 and July 2025.

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How I considered this complaint

8. I considered the information Mrs X provided, the information the Council provided, relevant law and guidance, as set out below and our guidance on remedies, published on our website.
9. Mrs X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Relevant law and guidance

Education, Health and Care (EHC) Plan

10. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the Tribunal or the council can do this.
11. The EHC Plan is set out in sections which include section B: The child or young person’s special educational needs, section F: The special educational provision needed by the child or the young person and section I: The name and/or type of school or college.
12. The First-tier Tribunal (Special Educational Needs and Disability (SEND)) considers appeals against council decisions about special educational needs. We refer to it as the Tribunal in this decision statement. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued.

Maintaining the EHC Plan

13. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135).
14. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in Section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil its legal duty. At a minimum we expect it to have systems in place to:
• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement;
• check the provision at least annually during the EHC review process; and
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time.

Personal budget

15. A personal budget is the estimated amount of money which would be needed to cover the cost of making the special educational provision specified in the EHC Plan. Personal budgets are optional. If someone would like the Council to identify a personal budget they can make a request for it to do so.
16. Someone can receive part of the personal budget as a direct payment, so that they could commission or arrange provision in the EHC Plan themselves. The direct payment must be enough to cover the cost of arranging the provision.
17. The Council can refuse to make a personal budget or make a direct payment. This decision cannot be appealed to the Tribunal but the applicant can ask the Council to formally review the decision.

Education otherwise than at school (college)

18. Education other than at school (EOTAS) or education other than at college (EOTAC) is a form of education where the child or young person receives provision wholly outside of a school/college setting. It can be made up of several different kinds of provision. A council may arrange for any special educational provision that it has decided is necessary for a child or young person for whom it is responsible to be made otherwise than in a school/college (Children and Families Act 2014 section 61(1)).

Complaints handling

19. The Council’s complaints procedure is as follows:
• at stage one (local resolution) the service will acknowledge the complaint within three working days and provide a full reply within 20 working days; and
• if the complainant remains dissatisfied, they may escalate to stage two and a formal response will be provided within 20 working days but may take up to 65 working days with complex complaints.

What happened

20. Y has complex special educational needs including Attention Deficit Hyperactivity Disorder (ADHD), Autistic Spectrum Disorder (ASD), anxiety and social, emotional and mental health needs. Y has had an Education Health and Care (EHC) Plan for many years and was of college age.

Background

21. The Council issued Y’s final amended EHC Plan in spring 2024. Mrs X appealed to the special educational needs and disabilities (SEND) Tribunal on sections B, F and I. Mrs X wanted Y to be educated other than at college (EOTAC).

Tribunal order onwards

22. In summer 2024 the SEND Tribunal issued its order which said Y should receive:
• EOTAC;
• support from a mentor to improve Y’s communication and interaction skills, anxiety and emotional regulation and support from a personal trainer;
• flexible bespoke tuition based on Y’s interests including video editing including the provision of appropriate recommended resources and equipment and one to one support with Maths and English;
• Occupational Therapy (OT) direct and indirect provision; and
• Speech and Language Therapy (SALT).
23. After the Tribunal order was issued Mrs X emailed the Council requesting Y’s section F provision was funded by a personal budget with direct payments. Mrs X also attached a personal budget proposal including indicative costs and a recommendation for specialist resources from a professional video editor. The indicative personal budget included a computer and accessories for video editing and software subscription of approximately £6000, a mentor, a personal trainer, sensory equipment to include a treadmill and trampette and with a total personal budget of approximately £40,000 per year. The Council did not respond to Mrs X’s request.
24. In mid-September 2024 the Council issued Y’s final amended EHC Plan and included EOTAC provision. Section F was in line with the provisions set out by the Tribunal order included in paragraph 22 above.
25. In late September 2024 Mrs X made a first formal complaint to the Council. She said Y received their final amended EHC Plan in mid-September 2024 but the Council had not secured any of the section F provision in their Plan and was in breach of its duties. Mrs X said she submitted detailed proposals for a personal budget in August 2024 so the provisions could be in place as soon as Y’s final amended EHC Plan was issued.
26. In autumn 2024 Mrs X chased the Council several times for its stage one response. The Council acknowledged the stage one response was late because of a backlog of complaints it was dealing with and it was waiting for an update from the Council’s EHC Plan casework team.
27. In early January 2025 Mrs X complained to us. We did not consider the complaint at that stage because the complaint had not completed the Council’s corporate complaints process.
28. In early January 2025 a Council case officer, Officer 1, emailed Mrs X to tell her they would be Y’s new case officer. Officer 1 acknowledged Y’s personal budget had not been actioned and asked Mrs X to forward her personal budget information again. Mrs X emailed Officer 1 the same day. She said Y had not received any OT or SALT since September 2024. She did not want OT and SALT to be included in the personal budget but she had requested all the other educational provision was included. Mrs X also confirmed Y had not received any funding from the personal budget she had requested in August 2024.
29. Six days later a Council panel decided on Y’s personal budget including a computer, accessories and software for video editing (approximately £1,000) and a mentor and a personal trainer. The panel did not agree to the treadmill or trampette because, it said, they were not agreed at the Tribunal and were not included in Y’s section F provision.
30. In mid-January 2025 the Council started the referral process for Y’s OT and SALT provision. The same day Officer 1 emailed Mrs X and confirmed a referral had been sent for Y’s SALT and OT provision and the personal budget had been agreed. Officer 1 confirmed the details of Y’s personal budget would be communicated by the personal budget team. Officer 1 also attached an agreement form for Mrs X to complete which she signed.
31. In late January 2025 a Council’s direct payment officer, Officer 2, held a virtual meeting with Mrs X to set up the education direct payments for Y. Mrs X queried some of the direct payments. She was unhappy with the computer and video accessories payment of approximately £1000 and said it would not be enough for Y’s needs and Y needed the sensory equipment including the trampette and treadmill. Officer 1 emailed Mrs X and explained the reasons for Y’s personal budget decisions made at the panel meeting.
32. Mrs X remained unhappy and in late January 2025 she made a second complaint to the Council. She said she was concerned about the Council capping Y’s personal budget for their computer equipment at £1,000 and was concerned the Council would not fund Y’s required sensory and physical equipment which meant Y’s personal trainer could not start. Mrs X also complained Y’s SALT and OT provision had not been arranged.
33. In mid-February 2025 the Council responded to Mrs X’s first complaint, which she made in September 2024. It apologised for its delayed response. It said there had been a lack of progress with Y’s case and Mrs X’s request for a personal budget which was not processed appropriately. It said this was because of staff leaving the service and handover procedures not completed correctly. It also said there was some confusion about Mrs X’s personal budget request for SALT and OT which caused delay in the therapies team arranging the provision. The Council apologised for delays in processing Mrs X’s personal budget request and arranging Y’s SALT and OT. It said a Council decision making panel had agreed a personal budget for Y and the payments would be progressed. It said it would source Y’s OT and SALT provisions. The Council offered Mrs X £850 for Y’s missed OT and SALT from September to December 2024.
34. Mrs X was unhappy with the Councils stage one response and in late February 2025 she escalated her complaint to stage two of the Council’s complaints process.
35. In early March 2025 the Council sent Mrs X its stage one complaint response relating to Mrs X’s second complaint, which she made in late January 2025. It said the concerns Mrs X raised about lost OT and SALT provision were addressed under her first complaint made in September 2024 and it would not expand on those issues in its response. It confirmed the agreed rate for Y’s personal budget including £1000 for a computer and video editing software and the hours for Y’s mentor and personal trainer. The Council acknowledged Mrs X may not agree with the Council’s decision but it was what the Council had deemed appropriate to provide Y’s section F provision.
36. Mrs X was unhappy with the Councils stage one response relating to her second complaint from January 2025 and escalated it to stage two of the Council complaints process in mid-March 2025. Mrs X did not want the two complaints to be considered together. A few days later the Council emailed Mrs X and said it would provide a stage two complaint response for her second complaint from January 2025.
37. In late April 2025 the Council sent Mrs X it stage two response to her first complaint which she made in September 2024. It apologised for the delayed stage one response and apologised for not actioning Mrs X’s request for a personal budget. It said a personal budget was agreed for Y in January 2025 which had been back dated to September 2024 and Y should now be receiving a personal budget. It said it would be approaching potential OT and SALT providers for Y and would confirm the outcome with Mrs X as soon as possible. It offered Mrs X a remedy of £2,400 per term for two terms from September 2024 to April 2025, a total of £4,800 and an additional £200 for her avoidable time and trouble. This meant an overall remedy of £5,000. Mrs X accepted this remedy.
38. In mid-April 2025 Mrs X contacted the Council about the delayed stage two response to her second complaint which she made in late January 2025. In early May 2025 the Council responded to Mrs X and apologised for the delay in responding to her stage two complaint and said the Council would ‘provide a response soon’. Mrs X did not receive a stage two response from the Council and complained to us again.
39. The Ombudsman checked with the Council if it had completed its complaints handling process and it confirmed it had.
40. In late July 2025 a Council manager reviewed Y’s personal budget. The Council manager noted an external provider was asked to review Mrs X’s costings for the computer equipment and video editing software against the Council’s initial personal budget. It was decided Mrs X’s costings request were not proportionate for Y’s needs and went beyond the requirements of Y’s EHC Plan. The Council’s initial personal budget made in January 2025 was upheld. Officer 1 emailed Mrs X with the review decision.

My findings

Missed section F provision

41. Y’s section F provision should have been put in place by mid-September 2024 when the Council issued their final amended EHC Plan after the Tribunal. The Council did not do this which was fault and caused Y to miss education to which they were entitled. In the Council’s stage two response issued in late April 2025 it apologised and accepted Y did not receive their section F provision. It offered a remedy of £4,800 for lost provision between September 2024 to April 2025. This is in line with the Ombudsman’s guidance on remedies. Mrs X accepted the remedy offered which remedied the injustice caused. If Mrs X has concerns with Y’s provision after April 2025 she will need to make a new complaint to the Council as explained in paragraphs 3 and 6 above.

Personal Budget

42. The Council initially delayed considering Mrs X’s personal budget request which she sent the Council in late August 2024, this was fault and caused Mrs X uncertainty and frustration. The Council only started to consider this request in January 2025 when a new case officer, Officer 1, was assigned to Y. A Council panel decided on Y’s personal budget but at first did not clearly explain to Mrs X what Y’s personal budget included and did not give her a right to review which was fault and caused Mrs X confusion and frustration. Mrs X raised ongoing concerns about capping Y’s personal budget and not providing funding for sensory and physical equipment. It took the Council until mid-July 2025 to review Mrs X’s personal budget concerns and decided Y’s initial personal budget amount was correct. This delay was fault but did not cause Y an injustice because the Council’s decision did not change the funding or equipment they received, a decision it was entitled to make. The fault did cause Mrs X an injustice of ongoing uncertainty and frustration.

Complaints handling

43. In relation to Mrs X’s first complaint she made in September 2024 the Council delayed issuing its stage one response which the Council has already apologised for and remedied the injustice through a £200 payment.
44. In relation to Mrs X’s second complaint which she made in January 2025 the Council said in its stage one complaint response issued in early March 2025 it was combining both her complaints together. This was not fault because the complaints did overlap and were made in quick succession. However, when Mrs X escalated her complaint to stage two the Council said it would respond but then did not and told the Ombudsman the complaints process had been exhausted. This was fault and caused Mrs X confusion, uncertainty and avoidable time and trouble.

Service Improvements

45. We have already made recommendations to this Council on other similar cases. The Council has agreed to produce and action plan on how it deals with its stage one and stage two complaint response backlogs. The Council has already agreed officers will respond to personal budget requests in writing and provide applicants with the opportunity to request a review of the decision. The Council has agreed to update the Ombudsman on reducing the number of children waiting for therapy provision and what action it is taking to ensure therapy provision is provided without delay. On this basis no further recommendations were needed.

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Action

46. Within one month of the final decision the Council will apologise and pay Mrs X £200 to acknowledge the confusion, frustration and uncertainty caused by the faults identified in this decision regarding Y’s personal budget and her confusion, uncertainty and avoidable time and trouble relating to her stage two response on her complaint she made in January 2025. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology.
47. The Council will provide us with evidence it has complied with the above actions.

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Decision

48. I have completed my investigation finding fault causing injustice. The Council has agreed to take action to remedy the injustice caused. The Council has already put service improvements in place.

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Investigator's decision on behalf of the Ombudsman